The Alien Registration Act of 1940

Deanne S. Puloka



The Alien Registration Act was passed by Congress in 1940.  The Act made it illegal for any resident or citizen of the United States of America to teach or advocate the violent overthrow of the U.S. government.  The law also forced non-citizens to register with the U.S. government so that the government would be able to track them and their un-American ideas which may or may not lead to the overthrow of the government.  Three major trials which employed the Act are discussed within this paper, as well as the argument that the Act is unconstitutional and clashes with the First Amendment in the constitution of the United States.


The Alien Registration Act of 1940

        The first ten amendments to the Constitution of the United States of America are commonly referred to as �The Bill of Rights�.  These amendments were first applied to the Constitution in 1791 by founding father, Thomas Jefferson.  Amongst these rights are the rights to bear arms, practice religion, to a fair trial etc (Herbeck et al, 2005, p. 23).  Most people in the United States see the first ten amendments as true rights, something which apply to all legal citizens and can never be taken away.  However, this is not the case. 

        Through out the history of the United States, there have been notable incidents concerning the right of free speech and its interpretation by the U.S Supreme Court.  Most appalling is the Alien Registration Act, better known as the Smith Act, of 1940. This Act, in a response to real concerns about national security in the period right before the McCarthy Era of the late 1940s and 50s, was a horribly disguised attempt by the government to regulate opposing opinions.  First discussed in the Chamber of Commerce of the United States November meeting of 1934 (The Smith Act, 1956, p. 2), the Act has been called the �most controversial and far-reaching litigation� (Barker et al, 1978, p.69). 

        While the Alien Registration Act is better known as the Smith Act, the two are not quite interchangeable.  The Smith Act is actually not a legislative act at all, it is simply the �advocacy section� of the Alien Registration Act of 1940 (The Smith Act, 1956, p. 2).  The first section of the Alien Registration Act requires all non-citizen adults to register with the government within four months of arrival to the country.  The idea behind this was that the government would be better able to track aliens who would promote subversive propaganda and activity once in the U.S.  If the government was able to prove that the aliens were indeed guilty of subversive activity they would be denied naturalization and then be deported back to their home countries.  Years later, when the government put this law into place it was applied not only to adult aliens but to any citizen or resident of the United States of America.  The revised controversial advocacy section of the Alien Registration Act made it punishable by law for anyone, alien or citizen, to:

knowingly or willfully advocate, abet, advise or teach the duty, necessity, desirability or propriety of overthrowing the Government of the United States or of any State by force or violence, or for anyone to organize any association which teaches, advises or encourages such an overthrow, or for anyone to become a member of or to affiliate with any such association (p.69).


            At the time of the Alien Registration Act, Hitler and the Nazis had already invaded most of Europe (�Britain and France declare war on Germany�, 1939, para 2).  Even though the U.S government would not decide to step into the conflict for a couple more years, many thought it wise to keep Nazis, Communists and Fascists � public enemy number one became a sort of trinity- under close surveillance.  The Espionage Act of 1917 allowed for the U.S. to spy on aliens who might have belonged to one of the three groups named above, but the government was well aware that these beliefs and ideals were no longer limited to people from other countries; some American citizens themselves celebrated communist and fascist ideals.  In order for the government to protect itself and its citizens, the recommendations made by the U.S. Chamber of Commerce in the 1930s were revamped and became law on June 28th 1940 (The Smith Act, 1956, p.2).  It is commonly referred to as the Smith Act, due to the active involvement of Democrat, Virginia Representative Howard W. Smith.  Two years after the Alien Registration Act was passed, Smith was named �Our Worst Congressmen� by Time magazine (The Smith Act, 1956, p.4). 

            The Alien Registration Act was first used a year after it was passed.  A total of 29 individuals were indicted in Minneapolis, Minnesota.  The defendants were members of the Local 544 Union and the Socialist Workers Party, known as �Trotskyites� because they were followers of the late Leon Trotsky (The Smith Act, 1956, p. 6).  The only evidence brought against these individuals was the large amount of communist literature found in their offices by federal agents. Based on this alone, the jury found 18 of the 29 defendants guilty of advocating the overthrow of the U.S government (Cannon, 2008, para 5).  The American Civil Liberties Union (ACLU) and the Civil Rights Defense Committee tried to appeal the case but to no avail.  The last of the defendants finished serving his sentence in 1945.          

            In 1943, a �mass sedition� trial was held using the Alien Registration Act in Washington, D.C.  Over 30 individuals were brought to the attention of the court under the suspicion that they were Nazi sympathizers.  Due to a lack of evidence and the death of the presiding judge, Hon. Eicher, it was declared a mistrial only a couple months later(Chardavoyne, 2005, p.3).

            The most popular case that used the Alien Registration Act took place in late June, 1948 (ACLU, 1952, p. 3).  Twelve leaders of the United States Communist Party were indicted upon charges of violating the advocacy section of the Alien Registration Act.  They were accused of advocating the violent overthrow of the U.S. government through their discussion of Marxism-Leninism to members, and their attempt to circulate pamphlets, books and other print media on these teachings.  The court took the Communists� discussion to fit the criteria of "overthrowing and destroying the government of the United States by force and violence" (Liu, 2003, para 16).  The defendants were not charged due to their actions- which was the discussion-, only the court�s interpretation that the discussion fit the definition of a conspiracy to organize the Communist Party and teach Marxism-Leninism which advocated the overthrow of the U.S. government at some unspecified time in the future. 

A chief witness, considered integral to the final decision of the lower court, was former-Communist Louis Budenz, who provided the groundwork for the wide interpretation of the Communist Party discussions and print media.  Budenz, told the court and members of the jury that the writings of the Communist Party could be likened to an Aesop fable.  That is, with hidden meanings of sinister intent.  And so the court based their decision not on factual evidence regarding what was written or on what was being discussed, but on a mere interpretation of the intent behind the writings and the discussion from an individual who was not even present during the incriminating Communist meetings. 

Judge Harold R. Medina, who presided over the initial trial of the Communist party leaders, instructed the jury that they were not to pay attention just to what the communist party discussed, but also to their intent or purpose of discussing it.  Again, the communist leaders� intentions were subject to more interpretation. 

The trial lasted nine months and in the end the Communist leaders were found to be guilty as charged.  Eleven of the twelve Communists were fined $10,000 and were sentenced to five years in prison (The Smith Act, 1956, p.3).  The twelfth communist received a lesser sentence of three years for his participation in World War II where he had served in the U.S. Army (Liu, 2003, para 15). 

It is important to emphasize that the twelve Communist leaders were not indicted for any implicit acts.  Nor were they indicted for advocating any illegal acts.  They were indicted for conspiring to advocate seditious acts sometime in the undefined future.  They were convicted based on sheer interpretation by witnesses, the jury and the judge.  However, this paper is not concerned with the lower court proceedings as ridiculous as they may be, but rather the attempt to prove that the Alien Registration Act, specifically the �smith act� advocacy clause, is in fact in violation of the First Amendment.

In 1951, two years into their prison sentences, the case was appealed due to the unconstitutional nature of the Alien Registration Act and made it up to the United States Supreme Court.  The trial was held in Foley Square of New York and was recorded as Dennis vs. the United States of America.  Dennis, being Eugene Dennis, the general secretary of the American Communist Party.  Unfortunately, this court too bowed to political pressure, tension and war-scare and found the Alien Registration Act prima facie constitutional and upheld the lower courts� decision by a vote of six-to-two, with Justices Hugo Black and William O. Douglas dissenting and Justice Clark abstaining. 

No matter what time is examined, there will always be some who have argued against the freedom of expression.  Cases where people have opposed the freedom of speech in specific circumstances must be carefully examined.  Often it is not the idea of free speech that they disagree with, but rather a certain expressed idea that they would like to silence (Corbett, 1982, p.15).  In the particular case of Dennis vs. United States, the idea was Communism, which had been portrayed in particularly bad light during World War II.  In the United States, there are a number of groups who have unpopular ideas that do not reflect how the majority of U.S. citizens feel, for example- the American Nazi Party, atheists, pedophiles, etc.  However, the concern that the American Civil Liberties Union had asked those who belonged to more mainstream groups if one day the tables were to be turned and Communism prevailed, should not citizens who favor democracy have the right to discuss it? 

It is the ACLU�s concern to defend fundamental rights that every citizen of the United States, regardless of their political or religious beliefs, was given in the Bill of Rights.  The decision of the lower courts and the U.S Supreme Court took away the Constitutional rights of these Communist leaders, but it also threatens the fundamental liberties of all U.S citizens.

            The Alien Registration Act is unconstitutional for four main reasons- That it is vague, it will impose a chilling affect upon society, it emasculates the clear and present danger test and finally the cases in which it has been used have relied on judges to make the decision based on a matter of law, rather than the jury basing its findings on actual facts. 

            The distinction made between �discussion� and �advocacy� is extremely vague and indecisive.  In Dennis vs. U.S the court ruled that discussion of the violent overthrow of the United States was not prohibited by law, just the advocacy of the violent act was made illegal.  The court found there to be enough of a distinction between merely talking about an illegal act and talking about carrying out an illegal act.  However, the distinction is a matter of opinion and not a matter based upon facts.  It is particularly difficult to deduce whether written or oral speech is meant to stir up just the minds and hearts, or if it is meant to stir them from their seat.  Therefore this clause of the Alien Registration Act should be revised because as it is now, it should be thrown out due to void for vagueness for there is no clearly defined factual evidence between the words �advocate� and �discuss.�  According to the ACLU (1952) this would permit future courts to suppress the freedom of democratic debate (p.4). 

            Second, the bar has been set for what freely spoken speech includes and what speech can be seen as potentially dangerous as set by the precedence of Dennis vs. the United States.  Before this case, all speech except that which was civil libel or slander and clear and present danger arising from speech (such as sabotage, treason, espionage, incitement to riot or violence) was protected under the Bill of Rights.  By the standards set by this court case, all people must be wary of what they say; not in terms of dangerous acts likely to be committed in the near future, but in terms of what dangerous acts the government feels can be linked to the discussion and advocacy.  In its heyday, the Alien Registration Act caused a chilling affect in regards to the open market place of ideas.  People would no longer speak their minds because of how it could be interpreted by others, and what subversive acts their speech might be accused of causing.  Just one year before Dennis made it to the Supreme Court, Chief Justice Vinson had declared in Whitney vs. California that �one should be permitted to advocate what he will unless there is a clear and present danger that a substantial public evil will result there from� (ACLU, 1952, p.8). 

        The test for �clear and present danger� for judging the likely harm to society by freely spoken speech has been weakened indefinitely by this case.   According to the testimony before the court in Dennis vs. U.S, the Communist Party has always been methodically moving towards a communist revolution in the United States (Shapiro, 1966, p. 63).  The court saw no reason to wait for a revolution to take place, but rather saw it their duty to protect their countrymen from such an act by not furthering the delay of the arrest of leaders of the Communist Party.  In the Court of Appeals, on its way to the Supreme Court, Judge Hands altered the clear and present danger to mean �clear and probable,� that is, that the danger does not have to be happening right now, but rather at an undefined time in the near future (Shapiro, 1966, p.63).  Supreme Court Justice Vinson agreed with Hand�s alteration of the �clear and present danger� test and said, �It cannot mean that before the Government may act, it must wait until the putsch is about to be executed, the plans have been laid and the signal is awaited� (Shapiro, 1966, p.63).  Justice Douglas recognized this fear of inability to act until the last moment as rational but he said,

This does not mean, however, that the Nation need hold its hand until it is in such weakened condition that there is no time to protect itself from incitement to revolution.  Seditious conduct can always be punished.  But the command of the First Amendment is so clear that we should not allow Congress to call a halt to free speech except in the extreme case of peril from the speech itself (ACLU, 1952, p.10). 


Unfortunately, Douglas� opinion was not favored.  In light of these cases, the government will be more likely to try to stifle any criticism of it because it will be able to cite the criticism as the opening of the gates to a probable act of sedition.  Unfortunately this did happen and the interpretation of �clear and present/probable danger� was used as the foundation for countless convictions in the dark era of political repression that the U.S now calls the McCarthy period (Neier, 1979, p. 117). 

            In the Court of Appeal, Judge Hands explained to the jury that there was a clear and present danger in the case of Dennis.  He did not leave this up to the jury to decide for themselves.  He led the jury by his own personal interpretation and overstepped his responsibilities in court.  Chief Justice of California, Ronald M. George, states that trial by a jury of one's peers is among the fundamental democratic ideals of our nation (�Jury Information Resource Centre, 2009, para 1).   A jury is important because the fate of the defendant(s) rest upon the shoulders of twelve of his or her peers rather than the opinion of one well educated judge who arguably does not represent the �norm� of society.  Divorce and petty crimes are the only cases in which a jury is not employed.  More serious crimes such as murder cases are presented before a jury.  Why then was Dennis, not trial by jury?  Is the overthrow of the entire U.S government not considered as important as a single victim murder trial?  The responsibility to answer these questions proposed in this paper, and questions of others at the time such as the ACLU, weighs heavily upon the shoulders of those who removed from the jury the right and responsibility to consider such essential and overwhelming evidence as fact or interpretation.

            The ACLU has opposed the Alien Registration Act of 1940 from the very beginning, even when the American public celebrated the triumph over the communists.  In retrospect, the average citizen can see that this Act is based on fear, rather than confidence in people to have open debates and determine their own beliefs and their future actions.  The Act is a threat to the freedom of speech, but it is an even greater threat to democracy.  It does not only affect those involved in subversive groups or actions.  It affects every individual who resides in these United States.  The common citizen must understand the implications of the Alien Registration Act, once the common citizen�s enemy�s rights are taken away, the closer the rights of the common citizen come to be taken away.  It is hardly an exaggeration to say that what happened in the Dennis trial has already had drastic affects on the American public.  As previously mentioned, the dark McCarthy era looked to the precedent set by Dennis to continue the prosecution of individuals who were simply exercising their First Amendment right of free speech and assembly.  There must be a repeal of the Alien Registration Act.  As of now, it sits in court house books, dusty from long years of little attention or use in legal matters.  However, it is my fear that as long as the Alien Registration Act is on the books, the freedom of the people of the United States of America will always be threatened.  The way of life this country knows has been seriously undermined in the past by the use of this law and it needs to be thrown out due to its unconstitutional nature and the unconstitutional way it was applied in the three cases discussed in this paper, particularly Dennis vs. United States. 

            In the words of late former Congressman Vito Marcantonio of New York,

�the Smith Act, in its attempt to proscribe advocacy, is incompatible with the right which the American people irrevocably reserve to themselves to choose among competing ideas� Respect for its own integrity requires that Congress should remove from the statute book this law which on its face violates the rights of freedom of speech and assembly guaranteed by the First Amendment of the Constitution of the United States� (The Smith Act, its origin, use, poison, 1956, p, 14). 


More than ever before today, in a post 9/11 world where this country is in the middle of what may be the end or the just the very beginning of the United States� war on terror and terrorists, the Alien Registration Act needs to be appealed and thrown out.  This country is based on our founding fathers� understanding and appreciation for the unlimited freedom of the human mind.  It is this country that so many refugees flock to because here people are not afraid to speak their minds or what they find to be the truth.  Politicians, professors, students and voting adults should not disappoint those refugees seeking freedoms that they do not have in their own countries.  The Bill of Rights isn�t just an old piece of parchment paper that has no meaning or value in this society, but as long as the Alien Registration Act sits on the books, the two laws will conflict with each other. 





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